Wyong Shire Council v Shirt (1980) 146 CLR 40

Relevance

Wyong Shire Council v Shirt (1980) 146 CLR 40 provided the widely accepted test for breach of duty of care and the threshold for reasonably foreseeable risk.

Facts

The plaintiff was waterskiing on a lake when he had an accident which rendered him quadriplegic. He sued the local council and waterskiing club, claiming signs around a channel stating ‘deep water’ led him to mistakenly believe that the water in front of the signs was deep and safe for inexperienced water-skiers such as himself.

At trial, the jury found for the plaintiff. The NSW Court of Appeal upheld the verdict.

Held

Stephen, Mason, Murphy and Aikin JJ, Wilson J dissenting, held that a reasonable person might have found the sign ambiguous and that it was open to the jury to find the defendant was in breach of its duty of care.

Mason J, Stephen and Aikin JJ concurring, held that there is a two-part enquiry as to whether there has been a breach of duty of care. The first question is whether ‘a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk to the plaintiff or to a class of persons including the plaintiff.’ His Honour examined relevant English case law to hold that, ‘[a] risk which is not far-fetched or fanciful is real and therefore foreseeable (48).’

If the first question is answered in the affirmative, it must be determined what a reasonable man would do in response to the risk with ‘consideration for the magnitude of risk, and the degree of the probability of occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have (47-48).’